********************************************************
NOTICE
********************************************************
This document was converted from
WordPerfect or Word to ASCII Text format.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Word or WordPerfect version or Adobe Acrobat version (above).
*****************************************************************
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
Enforcement of Section 275(a)(2) of the ) CCB Pol. 96-17
Communications Act of 1934, as amended by ) CCB Pol. 97-7
the Telecommunications Act of 1996, ) CCB Pol. 97-8
Against Ameritech Corporation ) CCB Pol. 97-11
)
ORDER
Adopted: October 24, 2000 Released: October
27, 2000
By the Commission:
1. In this Order, we adopt a Consent Decree terminating
the above-captioned proceedings related to Ameritech
Corporation's acquisition of the alarm monitoring services assets
of five unaffiliated entities in 1996. With respect to four of
the acquisitions, the Commission previously found that Ameritech
violated section 275(a)(2) of the Communications Act of 1934, as
amended, by obtaining financial control of unaffiliated alarm
monitoring service entities prior to February 2001.1
2. Pursuant to section 1.1204(b)(10) of the Commission's
rules,2 the Commission and SBC Communications, Inc. (SBC)3 have
negotiated the terms of a Consent Decree that would terminate the
above-captioned proceedings related to Ameritech's acquisitions.
A copy of the Consent Decree is attached hereto and is
incorporated by reference.
3. We have reviewed the terms of the Consent Decree and
evaluated the facts before us. We believe that the public
interest would best be served by approving the Consent Decree and
terminating the proceedings related to Ameritech's acquisition of
the assets of the five unaffiliated alarm monitoring entities.
The Alarm Industry Communications Committee (AICC) filed comments
supporting an order requiring divestiture on the grounds that the
acquisitions violated section 275(a)(2) of the Act, and Ameritech
should not be allowed to retain the unlawfully acquired assets.
We believe, however, that divestiture of only the unlawfully
acquired alarm monitoring services assets in these circumstances
might well create substantial confusion and inconvenience for the
customers Ameritech acquired from the five alarm monitoring
services entities.4 The situation is further complicated by the
fact that the statutory ban expires in February 2001.5 Thus, if
we required divestiture of the unlawfully acquired customer
accounts, SBC likely would be able legally to acquire the
companies that purchase the customer accounts, after the section
275 ban expires. In light of the limited duration of the
statutory prohibition of section 275(a)(2), the customer
confusion and inconvenience that likely would result from
divestiture of the unlawfully acquired alarm monitoring assets in
this proceeding suggest that such a remedy may not best serve the
public interest in these circumstances.6
4. Under the Consent Decree, SBC agrees that it shall use
its best efforts, prior to February 9, 2001, to divest itself of
SecurityLink, which is comprised of the grandfathered alarm
monitoring assets that Ameritech lawfully held before February
1996 and the alarm monitoring services assets that Ameritech
unlawfully acquired after February 1996. If, despite its best
efforts, SBC is unable to enter into a legally enforceable and
commercially reasonable contract to divest itself of SecurityLink
and does not submit such a contract to the Commission by February
9, 2001, SBC shall make a voluntary contribution to the United
States Treasury of One Million Dollars ($1,000,000) on February
10, 2001. In the event that SBC divests itself of SecurityLink,
it would divest both the grandfathered alarm monitoring assets
that Ameritech lawfully held before February 1996 and the alarm
monitoring services assets that Ameritech unlawfully acquired
after February 1996. Such divestiture would not result in the
confusion and disruption to customers that would be caused by the
partial divestiture of the unlawfully acquired alarm monitoring
assets. In the event that SBC enters into and submits to the
Commission a legally enforceable and commercially reasonable
divestiture contract by February 9, 2001, but fails to divest
itself of SecurityLink by the later of: (a) June 9, 2001; or (b)
the ninth (9th) business day after the Commission approves any
transfer of control applications required under the
Communications Act for completion of the divestiture transaction,
then SBC shall make a voluntary contribution to the United States
Treasury of One Million Dollars ($1,000,000) on the first
business day after such later date.
5. Finally, SBC agrees not to become involved with other
alarm monitoring businesses prior to the February 2001 expiration
of section 275(a)(2).
6. We conclude that adoption of the Consent Decree serves
the public interest. In addition, based on the record before us,
and in the absence of material new evidence relating to this
matter, we conclude that there are no substantial and material
questions of fact as to whether SBC possesses the basic
qualifications, including its character qualifications, to hold
or obtain any FCC licenses or authorizations.
7. Accordingly, IT IS ORDERED, pursuant to sections 4(i),
4(j), 275, and 312 of the Communications Act, 47 U.S.C. §§
154(i), 154(j), 275, and 312, that the Consent Decree,
incorporated by reference in and attached to this order, is
hereby ADOPTED.
8. IT IS FURTHER ORDERED that the Secretary SHALL SIGN the
Consent Decree on behalf of the Commission.
9. IT IS FURTHER ORDERED that the above proceedings ARE
TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
Enforcement of Section 275(a)(2) of the ) CCB Pol. 96-17
Communications Act of 1934, as amended by ) CCB Pol. 97-7
the Telecommunications Act of 1996, ) CCB Pol. 97-8
Against Ameritech Corporation ) CCB Pol. 97-11
CONSENT DECREE
I. Introduction
11.1 The Federal Communications Commission
("Commission" or "FCC") and SBC Communications Inc., and its
subsidiary, Ameritech Corporation ("Ameritech"), and Ameritech's
wholly-owned subsidiary, SecurityLink from Ameritech, Inc.
("SecurityLink") (all of them, collectively "SBC'' or ``SBC and
its affiliates"), hereby enter into this Consent Decree for the
purpose of terminating certain enforcement proceedings pending
before the Commission concerning compliance, by Ameritech and
SecurityLink, with Section 275 of the Communica?tions Act of
1934, as amended ("Act"), 47 U.S.C. § 275.
II. Background
11.2 On June 28, 1996, SecurityLink acquired the alarm
monitoring assets of the Home Security Division of Circuit City
Stores, Inc. ("Circuit City"). In April 1997, SecurityLink
acquired the alarm monitoring assets of Central Control Alarm Co.
("Central") and Norman Security Systems, Inc. ("Norman"). On
June 19, 1997, SecurityLink acquired the alarm monitoring assets
of Masada Security, Inc. ("Masada"). On October 3, 1997,
SecurityLink acquired the alarm monitoring assets from six
subsidiaries of Republic Security Companies Holding Co., II, Inc.
("Repub?lic"). These transactions will be referred to
collectively herein as the "Transactions."
11.3 Section 275(a)(2) of the Act permits Ameritech to
provide alarm monitoring services either directly or through an
affiliate.7 However, that provision prohibits Ameritech from
obtaining financial control of any unaffiliated alarm monitoring
service entity for a period of 5 years from the effective date of
the Act, which was February 8, 1996.8
11.4 The Alarm Industry Communications Committee
("AICC") filed motions with the Commission with respect to each
of the Transactions, alleging that they violated Section
275(a)(2) and requesting that the Commission issue a cease and
desist order, pursuant to Section 312(b)(2) of the Act, directing
Ameritech to rescind its purchase of the alarm monitoring assets.
11.5 AICC filed its first motion, challenging the
Circuit City transaction, on August 12, 1996. The Commission
initially denied this motion in an order released on March 25,
1997. See Enforcement of Section 275(a)(2) of the Communi?cations
Act of 1934, as amended by the Telecommunications Act of 1996,
Against Ameritech Corporation, CCBPol 96-17, Memorandum Opinion
and Order, 12 FCC Rcd. 3855 (1997) ("Circuit City''). The U.S.
Court of Appeals for the District of Columbia Circuit vacated and
remanded the Commission's Circuit City order on December 31,
1997. See Alarm Industry Communications Committee v. FCC, 131
F.3d 1066 (1997). On remand, the Commission issued a show cause
order, which is presently pending. Enforcement of Section
275(a)(2) of the Communications Act of 1934, as amended by the
Telecommunications Act of 1996, Against Ameritech Corporation,
Motion for Orders to Show Cause and to Cease and Desist, CCBPol
96-17, Memorandum Opinion and Order on Remand and Order to Show
Cause, 13 FCC Rcd. 19046 (1998).
11.6 AICC filed a motion challenging the Norman and
Central acquisitions on May 1, 1997. AICC filed its third
motion, challenging the Masada acquisition, on July 2, 1997. On
July 8, 1998, the Commission issued a show cause order, which is
presently pending, in those proceedings. Enforcement of Section
275(a)(2) of the Communications Act of 1934, as amended by the
Telecommunications Act of 1996, Against Ameritech Corporation,
Emergency Motions for Orders to Show Cause and to Cease and
Desist, CCBPol 97-7, 97-8, Memorandum Opinion and Order and Order
to Show Cause, 13 FCC Rcd. 15053 (1998).
11.7 AICC filed its final motion, challenging the
Republic acquisition, on October 8, 1997. See Public Notice,
CCBPol 97-11, 12 FCC Rcd. 16428 (Com. Car. Bur. 1997) (setting
pleading cycle for comments on AICC motion challenging Republic
acquisition). The Commission has taken no action with regard to
this final motion, which remains pending.
11.8 In its two orders to show cause relating to the
Circuit City, Central, Norman and Masada acquisitions, the
Commission concluded that Ameritech had acquired financial
control of the subject alarm monitoring services entities in
violation of section 275(a)(2). Consequently, the Commission
ordered Ameritech to show cause why it should not be required to
divest itself of the subject alarm monitoring services assets.
Ameritech responded to the two show cause orders on August 7,
1998, and October 28, 1998. Ameritech also submitted a letter to
the staff on October 29, 1999. Ameritech's responses to the show
cause orders contended that divestiture was an inappropriately
severe remedy on the facts of this case and that it would be
difficult to administer given the commingling of assets that had
occurred since the various Transactions. AICC filed comments
supporting an order requiring divestiture.
III. Definitions.
11.9 For the purposes of this Consent Decree, the
following definitions shall apply:
11.9)1 ``Commission'' means the Federal Communications
Commis?sion.
11.9)2 ``Affiliate'' shall have the meaning set forth in
47 U.S.C. § 153(1).
11.9)3 ``SBC'' means SBC Communications Inc. and all of
its subsid?iaries and affiliates.
11.9)4 ``Proceedings'' means the Commission proceedings
identified in paragraphs 4 through 7 above, CCB Pol.
96-17, 97-7, 97-8 and 97-11.
11.9)5 ``Order'' means an order of the Commission
adopting this Consent Decree.
11.9)6 ``Final Order'' means an Order that is no longer
subject to administrative or judicial reconsideration,
review, appeal, or stay.
Agreement
11.10 SBC and the Commission agree that this Consent
Decree does not constitute an adjudication of the merits, or any
finding on the facts or law regarding any violations committed by
SBC arising out of the Transactions. This Consent Decree does,
however, constitute a settlement of all issues raised heretofore,
or which, in the absence of material new evidence, may be raised
by the Commission hereafter, concerning the permissible scope,
under section 275(a)(2), of SBC's actions with respect to the
Transactions.
11.11 Pursuant to this Consent Decree, SBC shall
use its best efforts, prior to February 9, 2001, to enter into a
legally enforceable and commercially reasonable contract with a
Buyer to divest itself of SecurityLink such that SBC does not
retain de jure or de facto control of SecurityLink or the Buyer.
In the event that SBC enters into such a contract, SBC shall
submit such contract to the Commission by February 9, 2001. If,
despite its best efforts, SBC is unable to enter into such a
contract and does not submit such a contract to the Commission by
February 9, 2001, SBC shall make a voluntary contribution to the
United States Treasury of one million dollars ($1,000,000) on
February 10, 2001. In the event that SBC enters into and submits
to the Commission a legally enforceable and commercially
reasonable contract by February 9, 2001, but fails to divest
itself of SecurityLink by the later of: (a) June 9, 2001; or (b)
the ninth (9th) business day after the Commission approves any
transfer of control applications required under the
Communications Act for completion of the divestiture transaction,
then SBC shall make a voluntary contribution to the United States
Treasury of one million dollars ($1,000,000) on the first
business day after such later date. SBC agrees that, barring
unforeseen circumstances, it will file any necessary transfer of
control applications with the Commission no later than thirty
(30) days from the date it submits a legally enforceable and
commercially reasonable divestiture contract.
11.12 In addition, SBC agrees that during the time
between release of the Order and February 9, 2001 it will not:
(1) acquire any of the customer accounts or other assets of any
unaffiliated alarm monitoring entity, (2) acquire any options to
purchase or otherwise acquire any unaffiliated alarm monitoring
entity or the assets, including the customer accounts, of any
unaffiliated alarm monitoring entity, (3) have any joint
directors, officers or employees with an unaffiliated alarm
monitoring entity, or (4) obtain or acquire de jure or de facto
control over an unaffiliated alarm monitoring entity, whether by
providing financing or otherwise.
11.13 Notwithstanding any other provision herein, the
restrictions in paragraph 12 shall not apply to SecurityLink or a
Buyer as of the date on which SecurityLink ceases to be an
Affiliate of SBC.
11.14 The Commission agrees that, in the absence of
material new evidence related to the Proceedings, it will not use
the facts developed in its investigations or the existence of
this Consent Decree either to initiate on its own motion any new
proceeding, formal or informal, or to initiate on its own motion
any enforcement action against SBC concerning those Proceedings.
The Commission also agrees that, in the absence of material new
evidence related to the Proceedings, it will not use the facts
developed in its investigations or the existence of this Consent
Decree to initiate on its own motion any proceeding, formal or
informal, or initiate on its own motion any action against SBC,
with respect to its basic qualifications, including its character
qualifications, to be a Commission licensee or with respect to
compliance with the Commission's rules and policies.
11.15 The Parties agree that this Consent Decree will
terminate if SBC divests itself of SecurityLink or makes a
voluntary contribution to the United States Treasury consistent
with the terms of this Consent Decree.
11.16 In express reliance upon the covenants and
representations contained herein, the Commission agrees to
terminate the Proceedings when the Order adopting this Consent
Decree becomes a Final Order.
11.17 In consideration for the termination of these
Proceedings in accor?dance with the terms of this Consent Decree,
SBC agrees to the terms, conditions and procedures contained
herein.
11.18 In the event that SBC, or any of its affiliates or
subsidiaries, are found by the Commission or its delegated
authority to have engaged in conduct the same or similar to that
described in the Proceedings, SBC and the Commission agree that
the conduct described in the Proceedings may be used only to
fashion an appropriate sanction. The parties further agree that
SBC shall not be precluded or estopped from litigating de novo
any and all of the issues arising from the facts and allegations
in the investigation record of any of the Proceedings only as
necessary to defend, in any forum, its interest from challenge by
any person or entity not a party to this Consent Decree.
11.19 SBC admits the jurisdiction of the Commission to
adopt this Consent Decree.
11.20 SBC waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or
stay, or to otherwise challenge or contest the validity of this
Consent Decree and the Order adopting this Consent Decree,
provided the Order adopts the Consent Decree without change,
addition, or modifica?tion.
11.21 SBC and the Commission agree that the
effectiveness of this Consent Decree is expressly contingent upon
issuance of the Order, provided the Order adopts the Consent
Decree without change, addition, or modification and provided the
Order is consistent with the Consent Decree.
11.22 SBC and the Commission agree that if SBC, the
Commission, or the United States on behalf of the Commission,
brings a judicial action to enforce the terms of the Order
adopting this Consent Decree, neither SBC nor the Commission
shall contest the validity of the Consent Decree or Order, and
SBC and the Commis?sion shall waive any statutory right to a
trial de novo with respect to any matter upon which the Order is
based, and shall consent to a judgment incorporating the terms of
this Consent Decree.
11.23 SBC agrees to waive any claims it may otherwise
have under the Equal Access to Justice Act, Title 5 U.S.C. § 504
and 47 C.F.R. § 1.1501, et seq.
11.24 SBC agrees that any violation of the Consent
Decree or the Order adopting this Consent Decree shall constitute
a separate violation of a Commission order, entitling the
Commission to exercise any rights and remedies attendant to the
enforcement of a Commission order. 25. This Consent Decree may be signed in counterparts.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas,
Secretary
SBC COMMUNICATIONS INC.
Priscilla Hill-Ardoin
Senior Vice-President - FCC
_________________________
1 47 U.S.C. § 275(a)(2). Enforcement of Section 275(a)(2) of
the Communications Act of 1934, as amended by the
Telecommunications Act of 1996, Against Ameritech Corporation,
Motion for Orders to Show Cause and to Cease and Desist,
Memorandum Opinion and Order on Remand and Order to Show Cause,
13 FCC Rcd 19046 (1998) (Ameritech's acquisition of the alarm
monitoring services assets of a division of Circuit City Stores,
Inc.) (Circuit City Order to Show Cause); Enforcement of Section
275(a)(2) of the Communications Act of 1934, as amended by the
Telecommunications Act of 1996, Against Ameritech Corporation,
Emergency Motions for Orders to Show Cause and to Cease and
Desist, Memorandum Opinion and Order and Order to Show Cause, 13
FCC Rcd 15053 (1998) (Ameritech's acquisition of the alarm
monitoring services assets of Central Control Alarm Corp. (CCA),
Norman Systems Securities, Inc. (Norman), and Masada Security,
Inc. (Masada) (CCA Order to Show Cause). See also Public Notice,
Pleading Cycle Established for Comments on Alarm Industry
Communications Committee Fourth Emergency Motion for Orders to
Show Cause and to Cease and Desist, CCBPol 97-11 DA 97-2176, Rel.
Oct. 10, 1997.
2 47 C.F.R. § 1.1204(b)(10); see New York Telephone Co., 6
FCC Rcd 3303, 3305 ¶¶ 19-21 (1991), aff'd sub nom. New York State
Department of Law v. FCC, 984 F.2d 1209 (D.C. Cir. 1993).
3 On October 6, 1999, Ameritech Corp. merged with SBC
Communications, Inc. As a result of the merger, Ameritech is a
wholly owned subsidiary of SBC Communications, Inc. In re
Applications of Ameritech Corp., Transferor and SBC
Communications Inc., Transferee, Memorandum Opinion and Order, 14
FCC Rcd 14712 (1999).
4 See SecurityLink from Ameritech, Inc.'s Reply to AICC Letter
Urging Divestiture, Nov. 10, 1998.
5 The prohibition in section 275(a)(2) sunsets five years
after the date of enactment of the Telecommunications Act of
1996. 47 U.S.C. § 275(a)(2).
6 None of the cases cited by AICC necessitates divestiture.
7 Section 275(a)(2) permits ``the provision, directly or
through an affiliate, of alarm monitor?ing services by a Bell
operating company that was engaged in providing alarm monitoring
services as of November 30, 1995.'' 47 U.S.C. § 275(a)(2).
8 A Bell operating company that was engaged in providing alarm
monitoring services as of November 30, 1995 ``may not acquire any
equity interest in, or obtain financial control of, any
unaffiliated alarm monitoring service entity after November 30,
1995, and until 5 years after the date of enactment of the
Telecommunications Act of 1996.'' 47 U.S.C. § 275(a)(2). See
also Alarm Industry Communications Committee v. FCC, 131 F.3d
1066 (D.C. Cir. 1997).